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January 10, 2000

Mr. Gary W. Smith
Legal Advisor
Baytown Police Department
3200 North Main Street
Baytown, Texas 77521

OR2000-0091

Dear Mr. Smith:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 131956.

The Baytown Police Department (the "department") received requests for all information relating to two specified cases. You have submitted the responsive police reports for our review. You claim that the requested information is excepted from disclosure under sections 552.101, 552.108 and 552.130 of the Government Code. We have considered the exceptions you claim and have reviewed the information you submitted.

You assert that, "[b]ecause the investigation determined that no criminal act had occurred," section 552.101 "protects the identity of the accused." Section 552.101 excepts from public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Thus, section 552.101 protects information that is deemed confidential under other applicable constitutional, statutory, or common law authority. Generally speaking, constitutional privacy protects two kinds of individual privacy interests: (1) an individual's interest in independently making certain important personal decisions about matters that the United States Supreme Court has determined are within specific "zones of privacy," and (2) an individual's interest in avoiding the disclosure of personal matters to the public or the government. See Open Records Decision No. 600 at 3-5 (1992). Constitutional privacy is restricted to "the most intimate aspects of human affairs." See Open Records Decision No. 455 at 3-7 (1987); see also Ramie v. City of Hedwig Village, Texas, 765 F.2d 490, 492-93 (5th Cir. 1985), reh'g denied, 770 F.2d 1081 (1985), cert. denied, 474 U.S. 1062 (1986). Statutory privacy arises only in conjunction with another applicable statute containing express language that makes certain information confidential or states that it shall not be released to the public. See Open Records Decision No. 478 at 2 (1987). Common law privacy requires a showing that the information in question: (1) contains highly intimate or embarrassing facts about a person's private affairs such that its release would be highly objectionable to a reasonable person, and (2) is of no legitimate concern to the public. See Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 683-85 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). You have not informed this office, and we are not independently aware, of any constitutional, statutory or common law basis for the confidentiality of an accused person's identity under the circumstances presented here. We therefore conclude that the identity of the person accused of the conduct to which the responsive police reports pertain is not protected from disclosure under section 552.101 of the Government Code.

You also assert that section 552.101 in conjunction with section 411.106(b) of the Government Code "precludes the release of information concerning the person listed as a suspect." Having carefully reviewed section 411.106(b), we are unable to discern any basis for its applicability to the information at issue here. Further, we are not aware of any relevant constitutional, statutory or common law authority for the confidentiality of information concerning a person listed as a suspect in a police report.. Accordingly, we conclude that information relating to the person listed as a suspect in the responsive reports is not confidential under section 552.101.

You raise section 552.108 with regard to witness statements. You state that the information in question "relates to an investigation from which no charges were filed, therefore, no conviction or deferred adjudication resulted." Section 552.108 provides, in relevant part, that "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted [from public disclosure] if . . . it is information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication[.]" Gov't Code 552.108(a)(2). However, section 552.108 "does not except from [public disclosure] basic information about an arrested person, an arrest, or a crime." Gov't Code 552.108(c). Based on your representation that the information in question relates to an investigation that did not result in a conviction or deferred adjudication, we conclude that section 552.108 is applicable, so that the department is required to release only basic front-page offense and arrest report information under section 552.108(c). Basic information does not include the statements of witnesses. See Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App. [14th Dist.] 1975), writ ref'd n.r.e. per curiam, (Tex. 1976), Open Records Decision No. 127 (1976). Basic information must be released under section 552.108(c), even if it does not literally appear on the front page of a police report.

You also state, and we agree, that certain other responsive information is or may be protected from disclosure by sections 552.101 and 552.130 of the Government Code. A social security number or related record is excepted from disclosure under section 552.101, in conjunction with 1990 amendments to the federal Social Security Act, 42 U.S.C. 405(c)(2)(C)(viii)(I), if it was obtained or is maintained by a governmental body pursuant to any provision of law enacted on or after October 1, 1990. See Open Records Decision No. 622 (1994). You have not informed us, and we are unable to independently determine, whether any of the social security information presented here is confidential under the federal statute. Nevertheless, we caution you that section 552.352 of the Government Code prescribes criminal penalties for the disclosure of confidential information. Therefore, prior to releasing any social security number information, the department should ensure that it was not obtained and is not maintained under any provision of law enacted on or after October 1, 1990.

Section 552.130 of the Government Code excepts from disclosure information relating to:

(1) a motor vehicle operator's or driver's license or permit issued by an agency of this state;

(2) a motor vehicle title or registration issued by an agency of this state; or

(3) a personal identification document issued by an agency of this state or a local agency authorized to issue an identification document.

Gov't Code 552.130(a). Section 552.130 requires the department to withhold any information relating to a Texas motor vehicle operator's or driver's license or motor vehicle title or registration, including a license plate or vehicle identification number.

This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

James W. Morris, III
Assistant Attorney General
Open Records Division

JWM/ch

Ref: ID# 131956

Encl. Submitted documents

cc: Mr. Kurtis A. Ralston
802 Lindenwood
Baytown, Texas 77520
(w/o enclosures)


 

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